People v. Jones

• Decision Date: 22 June 1964
• Docket Number: Cr. 4405
• Citation: 39 Cal.Rptr. 302,228 Cal.App.2d 74
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David F. JONES and Weston D. Bailey, Defendants and Appellants.

Page 302

39 Cal.Rptr. 302

228 Cal.App.2d 74

PEOPLE of the State of California, Plaintiff and Respondent, v. David F. JONES and Weston D. Bailey, Defendants and Appellants.

Cr. 4405.

District Court of Appeal, First District, Division 1, California.

June 22, 1964.

Blair F. Burton, El Cerrito, for appellants.

Stanley Mosk, Atty. Gen. of State of California, Albert W. Harris, Jr., Deputy Atty. Gen., Charles W. Rumph, Deputy Atty. Gen., San Francisco, for respondent.

MOLINARI, Justice.

This is an appeal ¹ by defendants, David F. Jones and Weston D. Bailey (hereinafter sometimes respectively referred to as Jones and Bailey), from a judgment of conviction in Contra Costa County for conspiracy to commit the crime of contriving, preparing, setting up and proposing a lottery. (Violation of Pen.Code, § 182.) ²

Questions Presented

1. Did the trial court have jurisdiction of defendants, or either of them?

2. Did the trial court err in denying defendants' motion to dismiss for lack of probable cause?

3. Did the trial court err in overruling defendants' demurrer?

4. Did the lower court properly instruct the jury?

The Record

The facts established by the record, most favorable to the People's case, are as follows:

On September 5, 1960, defendants, Jones and Bailey, along with Red Foster and James Holliday, met in a restaurant in Albany to discuss a gambling proposition. The conversation at this meeting involved the general procedures for establishing a lottery to be operated in Nevada. Holliday informed the others that he had a friend in Reno who would maintain the sweepstakes in Nevada. The discussion also involved the drawing of a picture on the lottery tickets, and it was agreed that an artist would be contacted to compose the desired drawing. Two days later, Foster and Jones, while on business in Benicia, met Norman Suth, a friend of Jones. Jones apprised Suth of the lottery scheme and Suth arranged an appointment for Jones with a printer, Narsai David. The following day Suth introduced Jones to David at the latter's printing shop in Berkeley. There was no significant discussion at that time other than the making of an appointment for a meeting to be attended by David, Jones, Holliday and Foster. Three days later Jones and Holliday visited David at his printing shop and discussed various aspects involved in printing the tickets. Immediately following this conversation the three went by automobile to El Cerrito for lunch at O'Sullivan's Restaurant. Joining them in the restaurant was another person named Harry Sipe. During lunch Jones and Holliday described the lottery venture to David. Jones stated that a business organization had been formed composed of 10 prominent business people, each of whom was investing $2,000 to finance the venture. It was stated by both Jones and Holliday that the Mayor of either Albany or El Cerrito would be one of the financial promoters of the scheme, and that all the promoters anticipated a substantial profit; Jones told David that the legality of their proposal had been upheld by the District Attorneys of Solano and Contra Costa Counties; that the group had approval to sell tickets in those counties; that the only restrictions were that the group could not sell tickets in Alameda County, to juveniles, or openly on the street; and that sales were to be limited to factories, refineries and other places where the buyer could be directly contacted. Jones and Holliday told David that they were in charge of obtaining the tickets and organizing their distribution. David was also told that because of the organization of the enterprise he would not be in contact with any of the other financial promoters. David was then instructed as to the printing of the tickets. These instructions were that an artist's drawing of a horse's head and horseshoe together with the words, 'Win,' 'Place,' and 'Show,' were to be imposed on the tickets. David printed 200 tickets as samples and gave them to Jones. ³ He then printed 2,000 tickets, which were picked up at the print shop by Jones and Holliday. When Jones and Holliday received the 2,000 tickets, they placed an order for 5,000 more; Holliday returned to the print shop for the second order but only requested 500 for which he paid David. Holliday again returned to the print shop and asked for the remainder of the tickets, but David refused to surrender them until he received payment for the balance due for the printing job. Jones did not accompany Holliday on these subsequent two visits. It was David's testimony that Jones 'stopped coming around * * *.'

Subsequently, in 1961, David was advised by a private investigator that the scheme was possibly illegal, and that he should inform the Attorney General of the projected enterprise. David reported the venture in May of 1961, forwarding all the printing and engraving equipment to the Attorney General's office, and revealing the various events that had unfolded to that point. David's account of the lottery proposal was contained in a report made by a Special Agent of the State Department of Justice to the Chief Assistant Attorney General. This report was admitted in evidence without objection. ⁴

Proceedings in the Trial Court

The clerk's transcript discloses that three amended indictments were filed. Demurrers were interposed to the original indictment, the amended indictment and the second amended indictment. Demurrers were sustained as to the original indictment and the amended indictment. The demurrer to the second amended indictment was overruled. Thereafter, upon leave of court, an amended indictment (hereinafter referred to as the 'third amended indictment') was filed by the People. Defendants did not demur or otherwise make any motion directed to this indictment, but entered pleas of not guilty to the offenses therein charged. Prior to the pronouncement of judgment, defendants moved for a new trial on the ground that '[t]he Court misdirected the Jury in matters of law, and the verdict is contrary to law and evidence,' and for an order in arrest of judgment upon the ground that the count upon which defendants were convicted 'states only a misdemeanor outside the jurisdiction of the Superior Court and barred by the Statute of Limitations.' The motion for new trial was denied. The clerk's transcript does not show the disposition of the motion in arrest of judgment. It discloses, however, that the two motions which were contained in the same pleading were apparently treated as one motion and that the minute entry that the motion was denied was intended to apply to both motions. ⁵ In any event, no point is made on appeal with respect to this irregularity. Moreover, after the denial of the motion for new trial, defendants' counsel stated to the court at the arraignment for judgment that he had no legal cause to show why judgment should not be pronounced. (See Pen.Code, §§ 1200, 1201.)

Jurisdiction

Defendants' first contention, addressed to the jurisdiction of the court, is that the crime with which they were charged can only be a misdemeanor, and that therefore the superior court had no jurisdiction of the action. Defendants thus attack the subject matter jurisdiction of the court below. The jurisdiction of the superior court is generally confined to felonies, and if the jurisdiction of an offense exists in the municipal or justice court, the superior court has none. (People v. Mulholland, 16 Cal.2d 62, 64, 104 P.2d 1045; In re Joiner, 180 Cal.App.2d 250, 254, 4 Cal.Rptr. 667.) This alleged jurisdictional defect was urged on the motion in arrest of judgment, and is properly urged on this appeal. (See Witkin, California Criminal Procedure, § 24, p. 28; 1 Witkin, California Procedure, § 182, p. 696.)

Defendants' contention finds its basis in the language of Penal Code, section 320 ⁶ which provides that 'Every person who contrives, prepares, sets up, proposes, or draws any lottery, is guilty of a misdemeanor.' The thrust of defendants' argument is that each of the prohibited acts of the statute connote a conspiracy, and that, since there is a conflict, the special misdemeanor statute (§ 320) controls over the general felony conspiracy statute (§ 182). It is also urged that if the misdemeanor statute controls, the action was barred by the one year statute of limitations (§ 801). ⁷ Defendants thus rely on the rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. (In re Williamson, 43 Cal.2d 651, 654, 276 P.2d 593; In re Joiner, supra, 180 Cal.App.2d p. 253, 4 Cal.Rptr. 667; People v. Breyer, 139 Cal.App. 547, 550, 34 P.2d 1065, 1067.)

Our inquiry is directed, therefore, to whether section 320 is a specific enactment which controls section 182, a general statute covering the field of conspiracies. One of the provisions of section 182 includes a conspiracy to 'commit any crime.' Section 320 does not contain within its provisions the use of or reference to the words 'conspiracy' or 'conspire.' It is suggested by defendants in their briefs that the words 'contrive,' 'set up' and 'propose' in section 320 are words which connote a conspiracy. However, as indicated by counsel for defendants at oral argument, the focus of their argument is upon the word 'propose.' ⁸ The dictionary definition of 'propose,' in the sense used in the subject statute, is 'to form or declare a plan or intention: * * * to offer for consideration, discussion, acceptance, or adoption.' (Webster's Third New Internat. Dict.)

It is a primary rule of construction that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them. (Chavez v. Sargent, 52 Cal.2d 162, 203, 339 P.2d 801; Benson v. Superior Court, 214 Cal.App.2d 551, 558, 29 Cal.Rptr. 760.) There is...